Gladstones LBC received

cornel1311

Quick question:

As the Gladstones is claiming charges for 4 PCNS, how should I address them in the defence? Should I refer to the penalties as being a single amount of 580 pounds as written in the Claim Form, or should I write about them individually as 70 pounds (initial charge)?

Quentin

The claim is for £580.

If you dispute different parts of the total for different reasons then do so.

But if the 4 PCNs have identical circumstances and identical defences then your defence can address them collectively

cornel1311

Let me know your opinion about my final draft of the defence:

In the County Court Business Centre
Claim Number: xxxxxxxx

Between:
Horizon Parking Limited (Claimant)

v

xxxxxx (Defendant)

DEFENCE

Background

1. It is acknowledged that the defendant, xxx, is the registered keeper of the vehicle.

2. The vehicle was parked in a parking bay within Sainsbury’s Customer Car Park allocated to Sainsbury’s Supermarket.

3. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.

4.1 The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

4.2 Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:
4.2.1 there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and
4.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and
4.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

Preliminary

5. It is denied that any "parking charges or indemnity costs", as stated on the Particulars of claim, are owed. Hence, any debt is denied in its entirety.

6. It is denied that the Claimant has authority to bring this claim. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

7. Horizon Parking Ltd is not the lawful occupier of the land. I have reasonable belief that they are mere agents acting 'on behalf of' a landholder, and do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

8. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

9. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a principle established by Elliott v Loake 1983 Crim LR 36, I dispute it:
The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges; in addition, the case was a criminal case.
In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim.

10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:


10.1 Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.


10.2 The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

10.3 The signage was not lit, and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

10.4 No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.


10.5 Absent the elements of a contract, there can be no breach of contract.


11. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

12. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £70 to £140. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

12.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
12.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
12.3. The Defendant denies that the driver would have agreed to pay the original demand of £70 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
12.4. The Claimant described the charge of £70.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

13. It is denied that the Claimant has any entitlement to the sums sought. Given that each claim is based on an alleged contractual parking charge of £70 - already significantly inflated and mostly representing profit, as was found in Beavis - but the total amount claimed on the claim form is inexplicably £580.56, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. If a valid contract exists, the parking charges sought amount to a penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015.


14. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

15. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 18 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

16. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

17. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have been afforded the opportunity to consider it.



I believe that the facts stated in this Defence are true.


………………………………………………………. (Defendant)

……………………… (Date)

Coupon-mad

1. It is acknowledged that the defendant, xxx, is the registered keeper of the vehicle.

2. The vehicle was parked in a parking bay within Sainsbury’s Customer Car Park allocated to Sainsbury’s Supermarket.

3. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

I like the start, but than it's all template waffle and very long/repetitive.

I was expecting #4 to tell me WHY you say it turns on promissory estoppel.

You need to tell the judge what the acts of the matter were, by saying how the driver was made a 'promise' and when, and by whom. That should be #4.

cornel1311

To be honest I am trying to understand how this concept works. I was thinking that a promise cannot be made if the promisor is not aware of what he/she is promising in the case of poorly signaged parking.


Could you please explain how could this apply to my case? I am struggling to explain it with the proper terms.


Thank you in advance.

Coupon-mad

I don't even understand who you say promised you something. Please explain.

System

I was thinking that a promise cannot be made if the promisor is not aware of what he/she is promising in the case of poorly signaged parking.

Simplified: No one can be bounced into a contract by someone putting up a sign that is too far away, or the terms that are not readable, or in some cases by terms that are not there.

[The Shoe Lane Parking case]

There has to be a meeting of minds for a contract. There has to be a wilful disregard to the agreed terms for Beavis (the £100 charge) to apply. And that the warning on the £100 to be prominent.

[Denning's Red Hand Rule]

cornel1311

Coupon-madI don't even understand who you say promised you something. Please explain.

I was trying to say that in this case the driver cannot be held responsible for a promise he was not aware he was making. I.e. entering a poorly signaged parking.


Thank you IamEmanresu

I will try to put that as #4 as suggested by Coupon-mad.

cornel1311

Is this better?

3. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.


4. The Defendant avers that the Claimant has no legal ground for holding responsible the Defendant on a promise he was not aware he was making, considering the scarcity of the signage. The Shoe Lane Parking case established that no one can be bounced into a contract by someone putting up a sign that is too far away, or the terms that are not readable, or not present at all. This can be enhanced by the fact that the main entrance was lacking appropriate signage, missing clear terms, which state that the Defendant is entering into a contract with the Claimant.


5. The Denning’s Red Hand Rule stipulates that two minds must be present for a contract to be enforced. In addition, for the Beavis case to be applied, a deliberate disregard to the agreed terms must be proved. As such, the Defendant asserts that he has no legal responsibility, as there has been no contractual agreement between the Defendant and the Claimant. By lacking a contract, there cannot be a deliberate disregard to agreed terms.

cornel1311

Hello again,

I have received Directions questionnaire completed by Gladstones. Also, they are asking that everything should be dealt with papers, no court. What now?